Monday, July 08, 2019

Dick Posner: The Man Behind the Robe

By Eric SegallNow that the Supreme Court term is over, I decided to write
a personal post about a much misunderstood legal giant whom I know extremely
well.

Retired Seventh Circuit Judge Richard Posner has written more
than fifty books, thousands of articles and essays, and over 3,000 judicial
opinions. His writings on law and economics, anti-trust, torts, constitutional
law, and numerous other issues of national interest have made him “a
legend of American jurisprudence.”
There is no doubt that he is the most important judge in America over the last
fifty years who never sat on the Supreme Court.

Much has been written, and will be written, about his storied
career, which has been without a doubt polarizing. Posner’s approach to
judging, an obsessive pragmatist with little use for legal doctrine, his stern
questioning from the bench to shell-shocked lawyers, and his commitment to the
law and economics movement in his early days as a professor and then a judge,
alienated substantial numbers of legal academics, lawyers, and economists. On
the other hand, others hailed him as a genius. As Lincoln Kaplan once wrote, Posner’s
“approach to law, some legal scholars contend, makes the field worthy of a
Nobel Prize—which he would win, many say, by acclamation….”

This essay is not, however, about Posner’s long career as a
judge, academic, public intellectual and antagonist. This is a story about the
man behind the “legend.” I hope I’ll be forgiven for the extremely personal
nature of what follows but I know of no other way to tell this story.My first contact with Judge Richard Posner came almost a
decade ago. I had put the finishing touches on an essay arguing that the
Supreme Court of the United States is not a court and its Justices are not
judges. I talked to my wife Lynne (a non-lawyer) about sending the draft to my
friends and colleagues for review. She asked me whether anyone else had made
this kind of argument before. I said no, but there was one person, an extremely
famous judge, who just might be sympathetic based on his new book “How Judges
Think.” She suggested I send it to him. I responded that I didn’t know him at
all, and his reputation as a harsh critic was legendary. Lynne gave me the kind
of look only a spouse can give, so I looked up Judge Posner’s e-mail address,
and at 5:00 p.m. on a Friday, I pressed the send button with great trepidation.

Around 11:45 thatnight, I checked my e-mails, and
there was a response from the Judge. He read my essay, liked some of it, gave critical
feedback, and at the end asked me several questions inviting further
conversation. I was more than a little shocked not only that he read it but that
he responded so quickly. I later learned Posner does this for just about
everyone who sends him draft pieces. He is extremely generous that way.

We carried on e-mail conversations for a while, and then Posner
agreed to be interviewed by me in his Chicago chambers for a possible article.
This led to a six-hour conversation that would have gone much longer if I hadn’t
been too tired to stay in the moment (Posner, in his 70’s at the time seemed
like he could have gone on all day and night). The conversation was eventually published in
the New York Review of Books, where Posner carried on famous debates with the great legal philosopher Ronald Dworkin,

After that piece was published, Lynne and I were traveling
to Chicago and she suggested I e-mail Posner to see if he and his wife Charlene
would like to have a meal with us. At this point my relationship with Posner had
only consisted of the six-hour conversation in his chambers and e-mails dealing
with professional matters. But they agreed, and suggested we have Sunday brunch
in downtown Chicago.

The meal lasted over three hours, and we met the real Dick
Posner. He regaled us with funny stories about his career, including his
arguments with Justice Scalia about evolution. Posner was quite social—a quality
I hadn’t yet seen in him. Charlene was charming, funny and warm. At one point, Charlene
shushed Posner because he was criticizing Scalia at a decibel level that was
likely entertaining folks at other tables. We laughed and laughed, and the four
of us left the meal committed to seeing each other again. What a wonderful
surprise it was. The meal also marked the moment when I finally became
comfortable calling Judge Posner, “Dick,” something he famously insists on with
just about everyone. He prefers this informality
because, he later told me, “titles just get in the way.”

Dick and I continued communicating by e-mail about current
events, legal and non-legal. Eventually, I started kicking around the idea of
writing his biography. I knew there was already one in the works, but it wasn’t
by a law professor, and many people told me I was better equipped to put
Posner’s career in an appropriate context. When I mentioned this to Dick, he
complained that no one would ever want to read about his life or career, but if
I wanted to take it on, sure.

We started talking by Skype once a week. With his
permission, I recorded all the conversations. We talked about his childhood,
(his mother read him Shakespeare at an early age), his college days at Yale as
an English Literature major, his Harvard Law School experience (Editor-in-Chief
of the Law Review), his clerkship with Justice Brennan, his days working for
the Department of Justice, his academic stints at Stanford and the University
of Chicago, and eventually his judicial experiences. The only subject off
limits was his current family other than his view, repeated many times, that he
could not have had the career he had without Charlene taking masterful care of
everything involving the household and their two sons.

We also talked about the news, the Supreme Court,
philosophy, legal education, and many other topics. We fell into a pattern
where we would discuss something controversial, often disagree vehemently, yell
at each other, and then reach a common understanding or agree to disagree.
While we were yelling, I often thought to myself, I can’t believe I am arguing
with Judge Posner this way. He was never, ever fazed by my challenging him, and
neither of us took it personally. Dick consistently believed it was fair to criticize the
arguments, not the person (this admittedly changed for him in recent years when
he has criticized Supreme Court Justices in ways that even I, a staunch critic of the
Court, disapproved).

I cannot do justice to how much I enjoyed these conversations.
Most amazingly, although Dick expressed his opinions in the strongest of ways,
I noticed that he would often change his mind. When we first started talking,
for example, he completely opposed cameras in the Supreme Court or his court.
This was an issue deeply important to me, and I wrote a lot about it. One day
he told me I had convinced him on the matter. His desire for cameras at the
Seventh Circuit became so strong that shortly before he retired, he offered to
pay for the equipment and expenses himself.

After the 2008 economic collapse, he
famously and publicly changed his views about free markets and law and
economics, the subject areas he was most famous for influencing. He
also publicly changed his views on same-sex marriage. Although he wrote a book
review in 1997 arguing that the
Constitution obviously didn’t protect same-sex marriage, almost twenty years
later he wrote an opinion
striking down same-sex marriage bans. I had dinner with him shortly after that
opinion was issued, and he asked me when I thought the law had changed
concerning the rights of gays and lesbians to marry (a question Scalia asked
Ted Olson at the oral arguments in the Prop 8 case). I told him that I did not have
a well-developed theory to answer that question other than the history of the
Supreme Court shows that values, not law, drive constitutional questions, and
America’s values had changed. I asked him the same question, but I can’t do
justice to his complex and interesting answer here other than to say he focused
a lot on the children of openly gay couples and how unfair it was to them that
their parents couldn’t marry, and how that was not an issue 30 years ago,
because far fewer gays and lesbians were allowed to be open and adopt children.

Dick’s intellectual curiosity and honesty led him to change
his mind publicly and admit mistakes on many occasions. This ability to
confess error is extremely rare in people of his stature and is part of what
makes Dick so special.

As we became closer, I began to ask Dick to appear at
various conferences and symposia. He never said no. Not once. He wouldn’t
travel so the appearances took place via technology unless they were in
Chicago. I mention a few of these events (self-serving as they are) to show
what kind of friend Dick could be. I was one of many to whom he showed such
kindness.

After Justice Scalia died, I developed what most everyone,
including Dick, thought was the wacky idea of
freezing the Court at eight Justices, evenly divided among Republicans and
Democrats. Despite his disagreement, however, Dick arranged for me to present
the proposal at a highly prestigious University of Chicago workshop series
where his colleague, Judge Frank Easterbrook, glared at me like I was from Mars
(that’s another story). That workshop helped me refine and improve the idea.

Like most law schools, mine has a lunch series where we
invite scholars to present papers and books. I invited Posner to be our guest (again
via technology) and he agreed. This happened after I published my book “Supreme
Myths: Why the Supreme Court is not a Court and its Justices are not Judges.” Posner,
while sympathetic to much of my critique about the Supreme Court, did not fully
agree that the Court was not a court. In any event, my faculty turned out en
masse for the lunch event, and Dick was his usual entertaining, opinionated, and brilliant self. In response to a question from a colleague of mine, he
responded (quite gratuitously) and with a sheepish grin, by saying that the “Supreme
Court isn’t a real court anyway.” My faculty understood that stamp of approval.
That moment of validation meant the world to me.

I once arranged for Dick to speak at a constitutional law symposium
in Chicago to comment on a book presentation by Professor Randy Barnett. During
that event, Dick proclaimed that he didn’t care about what the Constitution
said because he couldn’t understand how today’s problems could be answered by a
text written so long ago (and he also thought text didn’t actually drive how
other judges decided cases either). He described with characteristic honesty
how he decided cases:

My approach with
judging cases is not to worry initially about doctrine,precedent, and all that stuff, but instead, try to figure out,
what is a sensible solution to this
problem, and then having found what I think is a sensible solution, without worrying about doctrinal
details, I ask ‘is this blocked by somekind
of authoritative precedent of the Supreme Court’? If it is not blocked, I say fine, let’s go with the common sense,
sensical solution.

His comments went viral after Professor Josh Blackman published
them on his blog. The criticism
flowed in from all directions, but Dick just said what he truly believed.
Imagine that.

I eventually decided that I could not write his biography
because I had lost all objectivity due to our friendship. That realization hit
me after I spent yet another week in Chicago trailing Dick at work. His
kindness to his law clerks, his sincere and abiding interest in making the best
decisions he could, and his (justified) aggravation at lawyers during oral arguments, all highlighted
that experience.

Dick’s sense of humor, his willingness to consider all
points of view, his creativity, his laugh, and his generosity are obvious to
all who know him well. His compassion has extended to pro se litigants to whom
he has devoted much of his time after his retirement. And he does it
all with just the right touch of mischievous glint in his eye and warmth in his
heart, where it really matters.

2 comments:

Eric, thank you for describing a true Mensch. You are fortunate to have such a friend. Posner's "generosity" to those who contacted him, as you did, suggests he has lots of friends, which is a tribute to him.

I appreciate the discussion and think such open engagement is helpful. Judge Sutton, e.g., was on a ACS panel recently (video at their blog). You know "Jeff."

The discussion notes that Posner is very open with his time and engaged with lots of people. But, a nod to ES as well, who seems like someone who does the same. It to me is apparent he likes engaging with people he disagrees with and the other parties repeatedly respect him too (at least as a pleasant gadfly type). These days this can trouble some people (e.g., one law professor argued on Lawyers Guns & Money blog, at least one contributor familiar to ES, said their is a duty now to boycott the Federalist Society).

I am still bothered by him giving Trump another judicial nomination. Checking, the seat went to Michael Yale Scudder (48), who seems to have the usual safe conservative connections. He received universal support in the Senate.

https://fedsoc.org/contributors/michael-scudder

The replacement seems on some level an okay enough choice as far as it goes. A quick look didn't pop anything of special note.